1
CIVIL PROCEDURE NOTES:
Substantive and Adjective law
The rules of substantive law define the rights and duties of persons in
their ordinary relationship with each other.
Adjective law deals with the procedure to be adopted in order to enforce a
right or duty.
For example: X lends his car to Z, who refuses to return it. Adjective law
sets out the procedural steps, which X must follow in order to regain
possession.
Adjective law is accessory to substantive law.
Function of the courts
To resolve disputes between legal subjects or between legal subjects and
the state.
Both civil and criminal proceedings may be described as formal systems of
dispute resolution that are sanctioned by the state.
This means that the judicial officer will hear the presentation of evidence
and arguments of both parties in an environment that is controlled by
formal rules, and then decide the matter in the form of a judgment or
order that is enforced by the state.
Subject matter of a civil & criminal trial:
Civil proceedings relate to a dispute between legal subjects. A dispute of
this nature is described as a claim.
However, criminal proceedings are between the state and an ordinary
citizen.
Parties – past paper question!
In criminal proceedings, the parties are the state and the accused.
Whenever a criminal matter goes on appeal at the instance of the
convicted person, the accused is known as the appellant.
In civil proceedings the person who starts the proceedings by issuing a
summons is known as the plaintiff and the person against whom the
summons is issued is the defendant.
Whenever proceedings are brought on application, the person bringing the
application is the applicant and the opposite party is the respondent.
If the matter goes on appeal, the person who lodges the appeal is the
appellant and the other party is the respondent.
Rules of Court :
Competence to make the rules
As from 1965, proceedings have been uniformly conducted in all the
divisions of the then Supreme Court, now the High Courts, under a
common set of rules still known as the Uniform Rules of Court.
The Rules Board was established in 1985. The members of the Board are
appointed by the Minister of Justice for a period of five years and are
eligible for reappointment. Section 6 specifies the powers of the Rules
Board to make, amend or repeal rules “for the efficient, expeditious and
uniform administration of justice” in the Supreme Court of Appeal, the
, 2
High Courts and the magistrates’ courts. The competence to make rules
for all these courts now vests in the Rules Board.
Rules of court – Competence to make rules :
Section 6(1) confirms onto the Rules Board to make rules for the courts
The rules board has the power to change the rules of the uniform rules and the
magistrates court
In terms of Section 6(1) of the Rules Board of courts of law act, the rules board
have the power to regulate and amend the following rules:
1. The procedures of litigation
2. Regulate the form and the content of pleadings and processes
3. Regulate the practice of service of processes (the summons)
4. Regulates the procedures and practices of execution of pleadings and
processes
5. Regulates the appointment and duties of the sheriff
6. Appointment of commissioners to take evidence where the witness cannot
appear in court
7. The appointment and admission of sworn translators
8. The manner or recording or noting evidence and proceedings
9. The appointment of assessors in proceedings in lower courts
Nature of the rules – NB past question:
“The rules exist for a court and not the court for the rules”:
o The rules are not an end in themselves but rather a means to an
end.
o The very purpose of the rules is to facilitate inexpensive and
efficient litigation and not to obstruct the administration of justice.
o This means that a court, subject to its competence to do so, may
condone non-compliance with procedure that would lead to
substantial injustice to a litigant.
o A superior court may also exercise its inherent jurisdiction to grant
relief in circumstances where the rules do not cover a particular
matter or where strict compliance with a rule would result in
substantial prejudice to a litigant.
(The rules exist for the sake of a court and not the other way around. The rules are
not an end in themselves, but rather a means to an end. The very purpose of the
rules is to facilitate inexpensive and efficient litigation, not to obstruct the
administration of justice. This means that a court, subject to its competence to do
so, may condone non-compliance with procedure that would otherwise lead to
substantial injustice to a litigant. A superior court may also exercise its inherent
jurisdiction (see study unit 3 above) to grant relief in circumstances where the
rules do not cover a particular matter or where strict compliance with a rule would
result in substantial prejudice to a litigant).
Adversarial Procedure
A dominant element of the Anglo-American civil procedural system is its
adversarial nature.
Characterised by the following:
Both litigants
, 3
Independently initiate and prosecute their respective claims or
defences, and
Investigate and gather information that supports their respective
claims or defences, and presents this as evidence before a court.
This brief description expresses three fundamental principles that
underlie our system of civil procedure. These principles are those of
Bilaterality
Party prosecution
Party presentation
Bilaterality: this assumes that both litigants will have a fair and balanced
opportunity to present either their respective claims or defences. The truth
should then emerge if each party presents his or her own biased view of
the issues in dispute.
Party prosecution – past question: this refers to the competence of a
litigant either to commence or defend proceedings and to move (prosecute)
the case forward through all its procedural stages, thus litigation is a
private matter that is conducted by both litigants without any interference
from the court, except where its intervention is requested by one of the
litigants.
Thus, a person whose substantive rights have been infringed or alienated
has a choice either to commence civil proceedings or simply to do nothing
about the matter. Both litigants must conduct the proceedings according
to certain minimum standards that are prescribed by the Rules of Court.
The court will only become involved in the proceedings if, for instance, one
of the litigants approaches the court to compel the other litigant to comply
with the Rules of Court or requests the court to condone a mistake in
procedure.
Party presentation – past question: this refers to the competence of a
litigant to investigate his or her own cause or defence, to formulate the
issues in dispute as well as to present the material facts concerned, and to
prove these facts and raise legal argument in support of these facts before
a court.
A litigant has control of the content of his or her cause of defence, as the case may
be. Litigants are competent to determine the issues in dispute as well as to define
the scope of the dispute without the interference of the court.
The litigants should be masters of their rights. Litigants take primary
responsibility for determining the issues in fact and in law that relate to the
dispute, without judicial interference, the litigants should be masters of their
rights.
The role of the court: In South Africa the role of the judicial officer is
passive. An exception can be found with the commissioner of a small
claims court.
The passive role of the judicial officer is compared to that of an umpire.
The role of the judicial officer is passive in that he or she is restricted to
the evidence that the litigants have chosen to present during a trial or a
hearing on motion.
, 4
Reforming civil procedure – NB past question:
1. Continual revision of the rules of the court.
2. To increase the jurisdictional limits of the lower courts in order
to give more people access to a court but at a lower cost.
3. Exclude, in part or in whole, specific types of dispute from the
court system.
4. The use of informal dispute resolution processes, like the CCMA
(arbitration).
5. Establishing alternative fora – like the small claims court.
Differences between Continental and Anglo-American systems:
Anglo American Continental
- adversarial - inquisitorial
- private matter - JO participates actively
- rely on legal in the litigation
representatives to - JO can gather evidence
gather and present - JO can actively
evidence participate by asking
- oral – rely on viva voce questions and leading
evidence evidence
- distinct pre-trial and - No precedent is
trial stages followed, only the Code
- Judicial official (JO) (statute).
plays a passive role
- JO like an umpire in a
game
- He can raise issues by
questioning witnesses
or testing legal
arguments
- JO restricted to the
evidence presented by
the litigants.
Alternative Dispute Resolution:
(this is merely a short summary of some of the NB points)
ADR processes are:
Informal, ADR processes are not bound by strict rules of procedure
Flexible, can be adapted to suit the needs of particular types of disputes
in different contexts
Voluntary, the disputants are not compelled to enter into the process
Consensual, reached through consent of both disputants
Interest based
Relational
Future orientated
CIVIL PROCEDURE NOTES:
Substantive and Adjective law
The rules of substantive law define the rights and duties of persons in
their ordinary relationship with each other.
Adjective law deals with the procedure to be adopted in order to enforce a
right or duty.
For example: X lends his car to Z, who refuses to return it. Adjective law
sets out the procedural steps, which X must follow in order to regain
possession.
Adjective law is accessory to substantive law.
Function of the courts
To resolve disputes between legal subjects or between legal subjects and
the state.
Both civil and criminal proceedings may be described as formal systems of
dispute resolution that are sanctioned by the state.
This means that the judicial officer will hear the presentation of evidence
and arguments of both parties in an environment that is controlled by
formal rules, and then decide the matter in the form of a judgment or
order that is enforced by the state.
Subject matter of a civil & criminal trial:
Civil proceedings relate to a dispute between legal subjects. A dispute of
this nature is described as a claim.
However, criminal proceedings are between the state and an ordinary
citizen.
Parties – past paper question!
In criminal proceedings, the parties are the state and the accused.
Whenever a criminal matter goes on appeal at the instance of the
convicted person, the accused is known as the appellant.
In civil proceedings the person who starts the proceedings by issuing a
summons is known as the plaintiff and the person against whom the
summons is issued is the defendant.
Whenever proceedings are brought on application, the person bringing the
application is the applicant and the opposite party is the respondent.
If the matter goes on appeal, the person who lodges the appeal is the
appellant and the other party is the respondent.
Rules of Court :
Competence to make the rules
As from 1965, proceedings have been uniformly conducted in all the
divisions of the then Supreme Court, now the High Courts, under a
common set of rules still known as the Uniform Rules of Court.
The Rules Board was established in 1985. The members of the Board are
appointed by the Minister of Justice for a period of five years and are
eligible for reappointment. Section 6 specifies the powers of the Rules
Board to make, amend or repeal rules “for the efficient, expeditious and
uniform administration of justice” in the Supreme Court of Appeal, the
, 2
High Courts and the magistrates’ courts. The competence to make rules
for all these courts now vests in the Rules Board.
Rules of court – Competence to make rules :
Section 6(1) confirms onto the Rules Board to make rules for the courts
The rules board has the power to change the rules of the uniform rules and the
magistrates court
In terms of Section 6(1) of the Rules Board of courts of law act, the rules board
have the power to regulate and amend the following rules:
1. The procedures of litigation
2. Regulate the form and the content of pleadings and processes
3. Regulate the practice of service of processes (the summons)
4. Regulates the procedures and practices of execution of pleadings and
processes
5. Regulates the appointment and duties of the sheriff
6. Appointment of commissioners to take evidence where the witness cannot
appear in court
7. The appointment and admission of sworn translators
8. The manner or recording or noting evidence and proceedings
9. The appointment of assessors in proceedings in lower courts
Nature of the rules – NB past question:
“The rules exist for a court and not the court for the rules”:
o The rules are not an end in themselves but rather a means to an
end.
o The very purpose of the rules is to facilitate inexpensive and
efficient litigation and not to obstruct the administration of justice.
o This means that a court, subject to its competence to do so, may
condone non-compliance with procedure that would lead to
substantial injustice to a litigant.
o A superior court may also exercise its inherent jurisdiction to grant
relief in circumstances where the rules do not cover a particular
matter or where strict compliance with a rule would result in
substantial prejudice to a litigant.
(The rules exist for the sake of a court and not the other way around. The rules are
not an end in themselves, but rather a means to an end. The very purpose of the
rules is to facilitate inexpensive and efficient litigation, not to obstruct the
administration of justice. This means that a court, subject to its competence to do
so, may condone non-compliance with procedure that would otherwise lead to
substantial injustice to a litigant. A superior court may also exercise its inherent
jurisdiction (see study unit 3 above) to grant relief in circumstances where the
rules do not cover a particular matter or where strict compliance with a rule would
result in substantial prejudice to a litigant).
Adversarial Procedure
A dominant element of the Anglo-American civil procedural system is its
adversarial nature.
Characterised by the following:
Both litigants
, 3
Independently initiate and prosecute their respective claims or
defences, and
Investigate and gather information that supports their respective
claims or defences, and presents this as evidence before a court.
This brief description expresses three fundamental principles that
underlie our system of civil procedure. These principles are those of
Bilaterality
Party prosecution
Party presentation
Bilaterality: this assumes that both litigants will have a fair and balanced
opportunity to present either their respective claims or defences. The truth
should then emerge if each party presents his or her own biased view of
the issues in dispute.
Party prosecution – past question: this refers to the competence of a
litigant either to commence or defend proceedings and to move (prosecute)
the case forward through all its procedural stages, thus litigation is a
private matter that is conducted by both litigants without any interference
from the court, except where its intervention is requested by one of the
litigants.
Thus, a person whose substantive rights have been infringed or alienated
has a choice either to commence civil proceedings or simply to do nothing
about the matter. Both litigants must conduct the proceedings according
to certain minimum standards that are prescribed by the Rules of Court.
The court will only become involved in the proceedings if, for instance, one
of the litigants approaches the court to compel the other litigant to comply
with the Rules of Court or requests the court to condone a mistake in
procedure.
Party presentation – past question: this refers to the competence of a
litigant to investigate his or her own cause or defence, to formulate the
issues in dispute as well as to present the material facts concerned, and to
prove these facts and raise legal argument in support of these facts before
a court.
A litigant has control of the content of his or her cause of defence, as the case may
be. Litigants are competent to determine the issues in dispute as well as to define
the scope of the dispute without the interference of the court.
The litigants should be masters of their rights. Litigants take primary
responsibility for determining the issues in fact and in law that relate to the
dispute, without judicial interference, the litigants should be masters of their
rights.
The role of the court: In South Africa the role of the judicial officer is
passive. An exception can be found with the commissioner of a small
claims court.
The passive role of the judicial officer is compared to that of an umpire.
The role of the judicial officer is passive in that he or she is restricted to
the evidence that the litigants have chosen to present during a trial or a
hearing on motion.
, 4
Reforming civil procedure – NB past question:
1. Continual revision of the rules of the court.
2. To increase the jurisdictional limits of the lower courts in order
to give more people access to a court but at a lower cost.
3. Exclude, in part or in whole, specific types of dispute from the
court system.
4. The use of informal dispute resolution processes, like the CCMA
(arbitration).
5. Establishing alternative fora – like the small claims court.
Differences between Continental and Anglo-American systems:
Anglo American Continental
- adversarial - inquisitorial
- private matter - JO participates actively
- rely on legal in the litigation
representatives to - JO can gather evidence
gather and present - JO can actively
evidence participate by asking
- oral – rely on viva voce questions and leading
evidence evidence
- distinct pre-trial and - No precedent is
trial stages followed, only the Code
- Judicial official (JO) (statute).
plays a passive role
- JO like an umpire in a
game
- He can raise issues by
questioning witnesses
or testing legal
arguments
- JO restricted to the
evidence presented by
the litigants.
Alternative Dispute Resolution:
(this is merely a short summary of some of the NB points)
ADR processes are:
Informal, ADR processes are not bound by strict rules of procedure
Flexible, can be adapted to suit the needs of particular types of disputes
in different contexts
Voluntary, the disputants are not compelled to enter into the process
Consensual, reached through consent of both disputants
Interest based
Relational
Future orientated
